[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED _____________________________U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 27, 2008 No. 06-12984 _____________________________ THOMAS K. KAHN CLERK

D. C. Docket No. 98-00063-CV-6

SHERNIKA HOLTON, SPENCER WILSON, SANDRA MCINTYRE, MARY HILL, WILLIE MAE LEWIS, SHARON BOSTICK, THE THOMAS COUNTY BRANCH OF THE NAACP, GLADYS SHOTWELL, AUDREY LINDER, LISA WEBB, JENNIFER HIGHTOWER, EVELYN WILKERSON,

Plaintiffs-Appellants,

versus

CITY OF THOMASVILLE SCHOOL DISTRICT,

Defendant-Appellee. _________________________________________

Appeal from the United States District Court for the Middle District of Georgia _________________________________________

ON PETITION(S) FOR REHEARING*

Before EDMONDSON, Chief Judge, TJOFLAT and GIBSON,** Circuit Judges.

PER CURIAM:

Briefly stated, we, in our more recent opinion (490 F.3d 1257) in this case,

affirmed the District Court’s decision dealing with whether the school district’s

use of ability grouping either presently discriminates intentionally against black

students or reflects–per the McNeal decision–the present result of past unlawful

segregation in the district.

Plaintiffs say, in part, that we were wrong to represent that, if present

intentional racial discrimination by the school district has been a motivating factor

* Plaintiffs have filed only a Petition for Rehearing En Banc. A petition for rehearing en banc, however, “will also be treated as a petition for rehearing before the original panel.” 11th Cir. R. 35- 5. ** Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by designation.

2 in the present racial imbalance in classes, the federal courts could do nothing if

other causes also contributed substantially. We did not intend to say that. The

opinion writer was shifting between two ideas: present discriminatory intention

and present results of past discrimination.

Still, it is hard to be always clear. And we do not wish to be confusing. So,

if the opinion–taken as a whole–can be read to say something like what plaintiffs

suggest, we write today to say that the opinion should not be read to have decided

such a thing. We did not need to be or mean to be innovative.

For the ability grouping, the district court, as a matter of fact, has repeatedly

found no present intent to discriminate on account of race. Given the whole

evidence, that finding is not clearly erroneous. Everything we wrote last July must

be taken in that context. We stand by our decision.

Petition for Rehearing DENIED.

ENTERED FOR THE COURT:

/s/ J.L. Edmondson ______________________________ CHIEF JUDGE

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